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APPEAL NO. 05-2371

IN THEUNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TEEN RANCH, INC., MATTHEW KOCH AND MITCHELL KOSTER,Appellants-Plaintiffs,

v.

MARIANNE UDOW, MUSETTE MICHAEL, AND DEBORA BUCHANANAppellees-Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

CIVIL CASE NO. 5:04CV0032(HONORABLE ROBERT HOLMES BELL)

APPELLANTS’ INITIAL BRIEF

Benjamin W. Bull, Esq. Kevin Theriot, Esq.Gary McCaleb, Esq. Joel Oster, Esq.15333 North Pima Road, Suite 165 Scottsdale, Arizona 85260 ALLIANCE DEFENSE FUNDTelephone: (480) 444-0020 15192 RosewoodFacsimile: (480) 440-0028 Leawood, Kansas 66226

Telephone: (913) 685-8000Mark P. Bucchi Facsimile: (913) 685-8001Mich. Bar No. P32047550 Stephenson, Suite 202Troy, Michigan 48083Telephone: 248-589-8800Facsimile: 248-589-3303

Attorneys for Plaintiffs-Appellants

Appellants’ Initial Brief, Page i

CORPORATE DISCLOSURE STATEMENT

Teen Ranch, Inc., is a non-profit corporation organized under

Michigan law and does not issue stock. Consequently, Plaintiffs do not have

a parent corporation nor any publicly held company that owns 10% or more

of its stock.

Appellants’ Initial Brief, Page ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENTi

TABLE OF AUTHORITIES

iii

JURISDICTIONAL STATEMENT

1

STATEMENT OF ISSUES2

STATEMENT OF THE CASE3

STATEMENT OF THE FACTS4

SUMMARY OF THE ARGUMENT

12

ARGUMENT

I. MICHIGAN LAW REQUIRES FIA TO GIVE WARDS A CHOICE IF THE WARDS ARE TO BE SENT TO AN FBO, YET FIA FAILED TO PROVIDE THIS CHOICE TO WARDS.

14

A. The Statutory Mandates of Free Expression and Private Choice.15

1. Free Expression

15

Appellants’ Initial Brief, Page iii

2. Private Choice....................................................................17

B. The Defendants’ defiance of state and federal law.

1. Suppression of Free Expression.........................................21

2. Denial of private choice......................................................23

C. The District Court Correctly Found That Michigan and Federal Law Require Private Choice for Wards Attending FBOs, But Erred When It Then Punished Teen Ranch For FIA’s Failure To Follow Michigan and Federal Law.

25

II. AN OPT-OUT SYSTEM SATISFIES THE ESTABLISHMENT CLAUSE.

26A. The Opt-Out Provision Prevents The Government From

Forcing Wards To Attend FBO’s.26

B. The Youth Of Wards Is A Red Herring.

1. The District Court Opinion.................................................33

2. Analysis of the District Court Opinion

34.

(a) The presumed special status of minors.

34

(b) Misreading of precedent.

36

(1) Faith Works

36

Appellants’ Initial Brief, Page iv

(2) Schempp.

40

(3) American Jewish Congress.

42

III. FIA VIOLATED PLAINTIFFS’ CONSTITUTIONAL RIGHTS

43

A. The Maintenance Of The Moratorium Violates The Free Exercise Clause. 43

B. The Moratorium Violates The Free Speech Clause. ....................48

C. The Moratorium Violates The Federal Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.

51D. The Establishment Clause Does Not Justify The FIA’s Blatant Religious Discrimination, But Rather, The FIA’s Policy And Actions Targeting Religious Expression Violate The Establishment Clause....................................54

CONCLUSION57

CERTIFICATE OF COMPLIANCE

58

Appellants’ Initial Brief, Page v

TABLE OF AUTHORITIES

Agostini v. Felton, 521 U.S. 203 (1997)......................................................................18

American Civil Liberties Union of Kentucky v. Mercer County, Kentucky, 432 F.3d 624 (6th Cir. 2005)..........................................................15

American Jewish Congress v Corporation for National and Community Service,

399 F.3d 351 (D.C. Cir. 2005)………………………………29,32,42

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)..............................................................46

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1977)......................................................................51

Eullitt v Maine, 386 F3d 344 (1st Cir. 2004)...........................................................53

Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872, 877 (1990)..............................................................43

Everson v. Board of Education, 330 US 1 (1947)............................................................................55

FEC v. McConnell, 124 S.Ct. 619 (2004)...............................................................................35

Freedom from Religion Foundation, Inc. v. McCallum, 179 F.Supp. 2d 950 (W.D. Wis. 2002)……………………….37,38,39

Freedom from Religion Foundation, Inc. v. McCallum, 214 F. Supp. 2d 905 (W.D. Wis. 2002)………………………37,38,39

Freedom from Religion Foundation, Inc. v. McCallum, 324 F.3d 880 (7th Cir. 2003)……………………………….37,39,40,55

Appellants’ Initial Brief, Page vi

Good News v. Milford School District, 533 U.S. 98 (2001)........................................................................35

Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987)......................................................................42

Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001)......................................................................49

Lemon v. Kurtzman, 403 U.S. 602 (1971)......................................................................17

Locke v. Davey, 540 U.S. 712 (2003)......................................................................47,53

McDaniel v. Paty, 435 U.S. 618 (1978)......................................................................45

Mitchell v. Helms, 530 U.S. 793 (2000)………………………………13,17,18,19,28,36

Mueller v. Allen, 463 U.S. 388 (1983)......................................................................55

Perry Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 375 (1983)......................................................................51

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995). ...................................................................48

School District of Abington Twp. v Schempp, 374 US 203 (1963)........................................................................40,41

Sherbert v. Verner, 374 U.S. 398 (1963)......................................................................42,45

Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981)......................................................................42

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.

Appellants’ Initial Brief, Page vii

455 U.S. 489, 498 (1982). ...........................................................54

Widmar v. Vincent, 454 U.S. 263, 269 n.6 (1981)........................................................52

Witters v. Wash. Dep’t of Serv. for Blind, 474 U.S. 481 (1986)......................................................................55

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)………………………………………..29,32,36

Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993)...............55

U.S. Const., Amend. 1. ..........................................................................43

42 U.S.C. § 604a……………………………………….15,16,20,21,27,51

Public Act, section 220(2). ....................................................................21

Appellants’ Initial Brief, Page viii

JURISDICTIONAL STATEMENT

A. JURISDICTION OF THE DISTRICT COURT

The district court had jurisdiction over this case pursuant to 28 U.S.C.

§§ 1331 and 1343 as Plaintiffs advanced claims under the United States

Constitution, particularly the First and Fourteenth Amendments, and under

federal law, particularly 28 U.S.C. §§ 2201, 2202 and 42 U.S.C. §§ 1983,

1988. Plaintiffs also claimed that Defendants violated their rights under

state law. The state law claims arise out of the same case or controversy as

Plaintiffs’ federal claims. Thus, the district court had supplemental

jurisdiction over these claims pursuant to 28 U.S.C. § 1367.

B. JURISDICTION OF THE COURT OF APPEALS.

This Court has jurisdiction over this appeal under 28 U.S.C. § 1291 as

the district court granted Defendants’ Motion for Summary Judgment and

dismissed the case on September 29, 2005. A Timely Notice of Appeal was

filed by Plaintiffs on October 6, 2005.

Appellants’ Initial Brief, Page 1

STATEMENT OF ISSUES

(1) Did the District Court err in failing to find that the controlling

statutes accorded Teen Ranch the right to maintain their

religious programming, and accorded wards of Defendants the

right of “private choice”?

(2) Did the District Court err in holding that a system of placing

wards in private residential care facilities where wards have the

right to refuse the placement in the first instance, and then have

the additional right to leave the facility at any time if he or she

objects to the religiosity of the facility, does not satisfy the

establishment clause concerns expressed in Mitchell v. Helms,

530 U.S. 793 (2000), and the other Supreme Court cases on

government aid to faith-based organizations?

(3) Did FIA violate Plaintiffs’ Constitutional rights where

Michigan and Federal law prohibited FIA from attempting to

control the manner in which Teen Ranch expressed its religious

beliefs, yet FIA refused to make any placements of youth at

Teen Ranch until it ceased its religious activities?


STATEMENT OF THE CASE

On February 20, 2004, Plaintiffs Teen Ranch, Matthew Koch, and

Mitchell Koster filed a Verified Complaint against Marianne Udow in her

individual and official capacity as Director of the Family Independence

Agency (“FIA”), Musette Michael, in her individual and official capacity as

Interim Director of the FIA, and Debora Buchanan, in her individual and

official capacity as the Manager of the Purchase Care Division of the FIA.

Plaintiffs claimed that the Defendants violated the Establishment Clause and

their Free Exercise and Free Speech rights under the First Amendment of the

United States Constitution, their rights under the Due Process and Equal

Protection Clauses of the Fourteenth Amendment, as well rights under state

law, by imposing and maintaining a moratorium on placements of youth at

Teen Ranch until Teen Ranch abandoned its religious character. Plaintiffs

sought injunctive relief, declaratory relief, nominal damages, actual

damages, and attorneys’ fees.

On February 23, 2004, Plaintiffs filed a Motion for Preliminary

Injunction. The District Court denied Plaintiffs’ Motion.

On February 17, 2005, both Plaintiffs and Defendants filed Motions

for Summary Judgment. Plaintiffs filed a Motion for Summary Judgment,

seeking declaratory relief and injunctive relief lifting the moratorium on


placements at Teen Ranch, and declaring that Defendants violated Plaintiffs’

Constitutional rights and that Plaintiffs were entitled to damages.1

Defendants filed a Motion for Summary Judgment, seeking dismissal

of Plaintiffs’ claims.

On September 29, 2005, the District Court entered its Order denying

Plaintiffs’ Motion for Summary Judgment, and granting Defendants’ Motion

for Summary Judgment, dismissing Plaintiffs’ Complaint.

On October 6, 2005, Plaintiffs filed a notice of appeal.

STATEMENT OF THE FACTS

Teen Ranch History

Teen Ranch has provided licensed, residential services for delinquent,

neglected, abused, and emotionally troubled youth since 1966. (App. 1,

Compl. 12-14, 17; Koch PI Aff. Ex. C). While doing so, Teen Ranch has

openly advertised its religious orientation and character. (App. 20, Koch

dep., p. 47). For example, Teen Ranch’s mission statement states:

“Providing hope to young people and families through life changing

relationships and experiences from a Christian perspective.” (App. 1,

Compl. 12.)

1 Plaintiffs also requested a hearing to determine the amount of damages to which Plaintiffs are entitled. This issue was not reached below, and is therefore not ripe for appeal. Plaintiffs are not waiving these claims.


In performing its residential care services, Teen Ranch expresses its

religious beliefs via voluntary prayers before meals, voluntary devotions

during the week, voluntary church attendance and voluntary discussions

concerning the Christian faith between staff and wards. (App. 20 and 21,

Koch, p. 51, Koster dep., 50, 51, 52, 67, 68, 70, 71). Teen Ranch’s policy is

that it does not require wards to participate in any religious activity,

including church services. (App. 1, 20; Compl. Ex. A at 8, H; Koch dep.,

51.

History of Michigan and the Federal Charitable Choice Aid Programs To Faith-Based Organizations

In 1996, Congress passed, and President Clinton signed into law, the

Personal Responsibility and Work Opportunity Reconciliation Act, 42

U.S.C. § 604a (the “Federal Law”). This Law had as its stated purpose to

permit “faith based organizations” (“FBOs”) to participate in federally

funded public service programs on an equal footing with other non-public

providers without “secularizing” themselves. See Opinion, p.10. The Law

expressly guarantees FBOs the right to retain their “religious character”,

described in the Law as the right to express and practice religious beliefs,

and prohibits states that accept federal funding under the Law from

discriminating against FBOs who do so. 42 U.S.C. § 604a (b), (d)(1), and

(c). Congress also granted recipients of the funded services the right to


reject being served by FBOs, both before the fact, and after the recipients

were placed at an FBO. See 42 U.S.C. § 604a (e) (1).

The State of Michigan has long accepted federal funding appropriated

under the Federal Law. Beginning in 2000, Michigan began explicitly

incorporating the provisions of the Federal law by reference, and instructing

the Defendant’s bureaucracy to “follow the guidelines” of the Federal Law

in all matters related to “faith based involvement.” See e.g. Public Act

(2003) Section 220 (“The Public Act”). In the fall of 2003, however,

matters took a decidedly different turn for the Plaintiffs.

The Defendants’ Moratorium

It as long been true that Teen Ranch, like the 95 other non-public

providers of residential youth services in Michigan, receives its

compensation from the State on a per capita, per diem basis (they are paid

for each day that each youth is treated there, and do not receive “block

grants”). In September, 2003, Wallace Spafford, of the Licensing

Department and Defendant Debora Buchanan began corresponding about

Teen Ranch, its religious character, and joint plans to confront Teen Ranch.

(App. 4; Plaintiffs’ Deposition Exhibit C). At Ms. Buchanan’s instructions,

three FIA agents conducted a “Quality Assurance Review” (“QAR”) at Teen

Ranch from October 28 through November 5, 2003. (App. 26; Buchanan


dep., 23-26). This QAR allegedly uncovered evidence, in the form of youth

reports, that Teen Ranch coerced the wards placed there to participate in

religious activities. Teen Ranch has consistently denied doing so. On

November 6, 2003, Ms. Buchanan decided that FIA would cease sending

youths to Teen Ranch, thereby imposing a “moratorium” on further

placements. (App. 1, 15; Compl. 25).

On December 2, 2003, FIA sent Teen Ranch their report explaining

the moratorium, and citing the religious program as a matter of “technical

assistance,” as opposed to a violation requiring the moratorium. (App. 14;

December 2, 2003, Quality Assurance Program Report). However, on

December 17, 2003, Defendant Buchanan met Plaintiff Matt Koch, CEO of

Teen Ranch, and determined that the continuation of Teen Ranch’s religious

programs would be the paramount issue in dispute between the parties.

(App. 26; Buchanan dep., 62). As of January 6, 2004, all other issues in

dispute between FIA and Teen Ranch were adequately resolved. The sole

remaining basis for the continuation of the moratorium was FIA’s demand

that Teen Ranch eliminate its religious programming,2 and Teen Ranch’s

refusal to do so. (App. 26; Buchanan dep., 57).

2 When Defendants refer to Teen Ranch’s religious programming, they are referencing the prayer, devotions, church attendance, and religious discussions, all of which are done on a voluntary basis.


That stand off persists until today, although, as the District Court

noted, the moratorium has had a “profound financial effect” on Teen Ranch.

See Opinion, p. 5. By June, 2004, Teen Ranch was forced to close down its

program for public referrals entirely.

Despite the allegations, Defendants did not relocate any ward, nor

offer any ward the option to relocate, because of a complaint about being

coerced to participate in religious activities. (App. 26; Buchanan dep., 118-

120). Defendants have never re-interviewed the wards they claim were

coerced. (App. 24; Jansen dep. 51-52). Nor did they report their concerns

regarding forced proselytization to the wards’ parents, caseworkers, or

lawyer-GALs. (App. 26; Buchanan dep., 112-113). Defendants did not even

tell Teen Ranch who the allegedly offended wards were. (D. Buchanan)

On January 21, 2004, Teen Ranch counsel sent FIA a letter, denying

that Teen Ranch coerced religious participation, detailing Teen Ranch’s

position, including the binding effect of the Federal Law and Public Act, and

requesting that FIA abide by said laws. (App. 8).

On January 31, 2004 a meeting was held between FIA and Teen

Ranch representatives, during which Teen Ranch presented FIA with the

Public Act and the Federal Law, an explanation of the significance of these

laws, and invited FIA to join Teen Ranch in obeying these statutes by


according the wards the rights of private choice, and permitting Teen Ranch

to retain the religious character guaranteed by the Federal Law and Michigan

law. (App. 1; Compl. 61.)

At said meeting, Defendants confirmed that the moratorium was being

perpetuated solely because of the religion issue. (App. 1; Compl. 65.a,b.)

They have, since April 2004, refused to do either thing proposed by Teen

Ranch.3

Defendants’ stated policy on religious expression by FBOs is that,

because their non-public providers (96 in number) receive government

money, they cannot incorporate religion into their programming in any way,

even in a non-coercive and voluntary way. Their firmness in this position is

such that they object to the possibility that a Teen Ranch staff member might

chat about religion while washing dishes with one of the youth. (App. 1;

Compl. 65.d.). Because Teen Ranch, like the 95 other providers, is a

residential facility, i.e. the wards are under care all day, every day,

Defendants maintain there is never a time that the inclusion of religious

content is permissible. (App. 26; Buchanan Dep. 88-90).

3 Briefly, in February/March 2004, Defendants cooperated with Teen Ranch in giving prospective placements a written disclosure of the Teen Ranch religious program, and the right to reject placement there. The Defendants discontinued this practice of informing wards about the religious nature of FBOs when the District Court issued its opinion denying Teen Ranch a Preliminary Injunction.


Jason Loneske is a delinquent child who wanted to be placed at Teen

Ranch because of the religious nature of Teen Ranch. He signed all forms

then required by Defendants to evince his knowledge of the Teen Ranch

program and his willingness to participate in same. (App. 25; Carter dep.,

pp. 17-25). FIA refused to place Jason Loneske at Teen Ranch due to its

religious nature. (App. 25; Carter dep., p.26). This occurred in early April,

2004. Two months later, Teen Ranch was forced to discontinue its services

to state-placed wards. It has attempted to continue operations on a purely

private basis, at drastically reduced volume.

The District Court’s Opinion

After taking discovery, both sides moved for summary judgment. The

District Court heard oral argument on April 7, 2005, and issued its Opinion

in favor of Defendants on September 29, 2005. In doing so, the District

Court correctly identified the central role of the issue of whether wards are

accorded the right of “private choice.” Opinion, p. 13. It focused in some

detail on Defendants’ placement practices, which merit some discussion.

As noted by the District Court, Defendants’ practice has been to

process new wards through a computerized “matrix” system to attempt to

identify, on some objective basis, the “best match” between the ward and the

facility at which he/she will be placed. Opinion, pp. 2-3. We note that this


process does NOT include assessing the wards’ religious preferences. (C.

Slotke). As noted by the Court, Defendants have indicated that, if the “best

match” facility is a religious one, and the ward objects to this placement on

those grounds, Defendants will provide an alternative. Opinion, pp. 15-16.

Defendants characterize their willingness to permit this type of “opt out” as

a volitional accommodation they would make to wards (although they also

maintain that none of their 96 providers should HAVE religious

programming). Although the District Court noted that Defendants are

“required to follow the guidelines related to faith-based involvement found

in 42 USC 604a,”4 the District Court did not challenge Defendants’ assertion

that this “opt out” was merely a volitional concession they were prepared to

make to certain wards.

In fact, the District Court treated the prior consent and right to

demand replacement provisions the parties implemented between February

and April of 2004 as a “laudable” but essentially optional exercise. Opinion,

page 13, footnote 8.

Ultimately, the Court reached the conclusion that, because the

Defendants’ “matrix” placement system selects the facility, and because the

wards are minors, no “true private choice” exists. Opinion, pp. 15-16. The

Court therefore concluded that Defendants were not violating the applicable 4 See Opinion, p. 8.


statutes (Opinion, p. 22), and, largely on this basis, dismissed all of Teen

Ranch’s Constitutional claims. Opinion, pp. 19-30.5

For reasons discussed below, we consider the Court to have erred.

SUMMARY OF THE ARGUMENT

Both the federal law (42 U.S.C. § 604a)(“Federal Law”) and

Michigan state law (Public Act 172, 2003)(“Public Act”) require FIA to

provide a system of private choice to youth who are placed at faith-based

residential care providers. Both Federal Law and the Public Act prohibit

FIA from discriminating against faith-based providers because of their

religious character, including the manner in which they express and practice

their beliefs.

Despite this clear instruction by Congress and the Michigan

Legislature, the Michigan Family Independent Agency (“FIA”) has refused

to accord wards private choice. Instead, they placed a moratorium on all

placements of wards at Teen Ranch, a faith-based provider. FIA has stated

that they will not lift the moratorium until Teen Ranch ceases its religious

activities. By refusing to accord wards private choice, and by maintaining

the moratorium on all placements at Teen Ranch, FIA has acted in direct

5 This is so despite the District Court’s findings that (a) Teen Ranch is the only provider of the 96 in Michigan that incorporates religious content into its program (Opinion, p. 2), and (b) that, if a ward objects to this religious placement, he will not be required to go to or stay at Teen Ranch (Opinion, pp. 15-16), which logically requires the conclusion that, given the mathematics involved, (c) the only way a ward of Defendants can receive religious programming under Defendants’ jurisdiction is if he agrees to it.


contravention of federal and state law, and has violated Plaintiffs’

constitutional rights.

In addition, the District Court erred in ruling that an opt-out provision

where wards can refuse a placement at a faith-based organization both

before he is placed there, and after, does not satisfy all Establishment Clause

concerns expressed in Mitchell v. Helms, and its progeny. See 530 U.S. 793

(2000). In this case, it is undisputed that Teen Ranch only receives money

from the government on a per capita basis for the treatment and care of

wards. The government cannot force a child to attend a faith-based

organization as the ward has the right to refuse such placement. The

Establishment Clause is only implicated in this type of case if the

government can, in effect, indoctrinate youth into a certain religion. But

since the wards have to right to refuse placement at a faith-based

organization, the government cannot indoctrinate youth into a certain

religion. Any exposure to religion will occur by the wards private choice.

FIA acted in direct contravention of Federal Law and the Public Act

when it placed, and maintained, a moratorium on placements of wards at

Teen Ranch until it ceased its religious activities. By requiring Teen Ranch

to cease its religious activities, when federal law and state law permit it, FIA

has violated Teen Ranch’s constitutional rights to free speech, free exercise


of religion, due process and equal protection, as well as the Establishment

Clause.

ARGUMENT

I. MICHIGAN LAW REQUIRES FIA TO GIVE WARDS A CHOICE IF THE WARDS ARE TO BE SENT TO AN FBO, YET FIA FAILED TO PROVIDE THIS CHOICE TO WARDS.

Four key factors have been established in this case that compel

reversal of the District Court. First, both Congress and the Michigan

Legislature require that FBOs like Teen Ranch be permitted to participate in

government funded programs without being required to “secularize” their

programs. This is the basis for providing the recipients in such programs

(the wards, herein) with “private choice.” Second, it is clear that

Defendants disagree with the above dictates of the two legislatures, and

disobeyed them, by both denying Teen Ranch the right to express its

religious convictions, and by denying (or attempting to deny) wards “private

choice.” Third, the statutes succeeded in granting the wards constitutionally

adequate “private choice,” and any failure of the Defendants to fully

implement the statutory directives cannot be taken to protect Defendants.

Fourth, the “youth” issue proposed by the Defendants is an overstated “red

herring.” These factors relate to Teen Ranch’s claims on a number of levels,

and will thus be discussed herein before the individual claims are addressed.


A. The Statutory Mandates of Free Expression and Private Choice.

1. Free Expression

The District Court acknowledged that the two federal and state

statutes involved herein “have changed some of the rules regarding public

funding of religious organizations.” Opinion, p. 10. Indeed, for those

adhering to an absolutist understanding of “the separation of church and

state,”6 the changes are drastic. The changes were announced by both

Congress and the Michigan Legislature.

As noted by the District Court, the rules announced in the 1996

Federal Law (42 U.S.C. § 604a), were adopted and incorporated by the

Michigan Legislature in the Public Act (PA 172, 2003), so that “the FIA is

required to follow the guidelines related to faith based involvement”

announced in the Federal Law. Opinion, p. 8 (emphasis added). Thus, it is

appropriate to consider the Federal Law’s directives and statements of

policy.

In the Federal Law, Congress has made its purpose plain:

The purpose of this section is to allow states to contract with religious organizations to accept certificates, vouchers or other forms of disbursement …on the same basis as any other

6 This metaphor was aptly characterized by this Court recently as “tiresome,” and an “extraconstitutional construct.” American Civil Liberties Union of Kentucky v. Mercer County, Kentucky, 432 F.3d 624 (6th Cir. 2005).


nongovernmental provider without impairing the religious character of such organizations, and without diminishing the religious freedom of beneficiaries of assistance funded under such programs.

42 U.S.C. § 604a (b) (emphasis added).

Congress specifically forbade states using federal funding from

discriminating against FBOs on the basis of their religious character. 42

U.S.C. § 604a(c). It is undisputed that Michigan receives federal funds

appropriated under this Federal Law. Next, Congress made crystal clear that

the “religious character” it was protecting entails far more than FBOs having

private, unexpressed religious convictions and motivations to engage in

social service, and includes the right to practice and express these

convictions in their work and in their programs:

A religious organization with a contract described in …this section, …shall retain its independence from Federal, State and local governments, including such organization’s control over the definition, development, practice, and expression of its religious beliefs.

42 U.S.C. § 604a (d)(1) (emphasis added).

Since 2000, the Sate of Michigan’s annual appropriation statute for

Defendants has explicitly incorporated the Federal Law by reference, and

mandated that Defendants “follow the guidelines of…the Federal Law” in

matters of “faith based involvement.” See Public Act, Section 220 (4).

Therefore, it is undeniable that both Congress and the Michigan Legislature


set out to, and did, mandate that FBOs like Teen Ranch would be permitted

to practice and express their religious beliefs when carrying out the funded

activities, i.e. the residential care of troubled youth.

Having specifically chosen to permit free religious expression in these

programs, Congress and the Michigan Legislature were obliged to render

this expression constitutionally sound. That they satisfied this obligation,

and how they did so, is also not subject to argument.

2. Private Choice.

The 2000 decision of the United States Supreme Court in Mitchell v

Helms, 530 U.S. 793 (2000), offers a succinct explanation of the 29 years of

development in Supreme Court jurisprudence in the field of funding for

religious institutions since the landmark decision in Lemon v. Kurtzman, 403

U.S. 602 (1971). It also makes clear how and why Congress and the

Michigan Legislature accorded the right of “private choice” to wards of the

Defendants.

In Mitchell, a 1985 Establishment Clause challenge to a federal statute

providing aid to public and private primary and secondary schools was

finally laid to rest, and the aid program was upheld. Writing for the Court,

Justice Thomas issued an excellent history and explanation of the Court’s


developing jurisprudence in the Lemon-Agostini v. Felton, 521 U.S. 203

(1997) line of cases:

the question whether government aid to religious schools results in (impermissible) governmental indoctrination is ultimately a question whether any religious indoctrination could reasonably be attributed to governmental action.

* * *

In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality.

* * *

As a way of assuring neutrality, we have repeatedly considered whether any governmental aid that goes directly to a religious institution does so “only as a result of the genuinely independent and private choice of individuals.” …We have viewed as significant whether the “private choices of individual parents” as opposed to the “unmediated will of government” … determine what schools ultimately benefit from governmental aid, and how much.

* * *

We explained that [w]here, as here, aid to parochial schools is available only as a result of decisions of individual parents no “imprimatur of state approval” can be deemed to have been conferred…

Mitchell, 530 U.S. at 809-810 (emphasis added).

This is the essence of the “private choice” doctrine. When

government makes aid available, and that aid reaches a religious private

institution only because it “follows” willing participants to the institution,


the participants’ “private choice” renders the flow of governmental aid to a

religious institution free of Establishment Clause defects. It is effectively

the individual who decides to confer the “benefit” on the religious

institution, not the government. Therefore, whatever religious indoctrination

may occur is not attributable to the government.

Justice Thomas continued, concerning the “direct/indirect” distinction,

and the significance of governmental money flowing “directly” to the

religious institution.

Although some of our earlier cases, particularly Ball, did emphasize the distinction between direct and indirect aid, the purpose of this distinction was merely to prevent ‘subsidization’ of religion…(O)ur more recent cases address this purpose not through the direct/indirect distinction but rather through the principle of private choice.

* * *

If aid to schools, even ‘direct’ aid, is neutrally available and, before reaching or benefiting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any (impermissible) ‘support of religion’. Although the presence of private choice is easier to see when aid literally passes through the hands of individuals…there is no reason why the Establishment Clause requires such a form.

Id. at 815-816 (emphasis added).

As noted above, Mitchell was issued four years after the Federal Law

was passed, but reiterates developments that had been ongoing for more than


a decade before the Law was passed. Hence three matters are made clear.

First, it was still current, in 1996, to draw distinctions between “direct” and

“indirect” funding, which the Federal Law does. See 42 U.S.C. § 604a (j).

Second, and more significant, the concept that “private choice” eliminates

any Establishment Clause challenge to a government aid program that

neutrally benefits religious institutions was already well established by the

Supreme Court. Third, any reliance expressed by Defendants on the fact that

the flow of funds herein did not pass literally through a third party’s hands is

misplaced by several years. “Private choice” was described in Mitchell as

the ability of the individual beneficiary of governmental subsidies to “direct

the aid elsewhere” (cite) than the religious institution, i.e. to refuse to enroll

in the religious school or program, in which event the institution would not

receive the aid associated with the beneficiary. When funding is done on

such a per capita basis, as is it in this case, this is particularly true. The

money either “follows the student,” or it does not. Responding to the

Supreme Court jurisprudence of “private choice,” Congress included an

unmistakable “private choice” provision in the Federal Law:

If an individual described in paragraph 2 (a recipient of funded services) has an objection to the religious character of the organization from which the individual receives, or would receive, assistance funded [under the Federal Law]…the State in which the individual resides shall provide the individual…within a reasonable time after


the date of the objection with assistance from an alternative provider…

42 U.S.C § 604a (e)(1)(emphasis added).

Not only did the Michigan Legislature incorporate this Law by

reference,7 it also enacted a near verbatim rendition of the above section.

See Public Act, section 220(2). Therefore, it is equally indisputable that

both statutes governing Defendants grant wards the right of private choice.

There is simply no other way to reasonably interpret Section (e)(1) of the

Federal Law, or Public Act Section 220(2), but as a grant of private choice.

B. The Defendants’ defiance of state and federal law.

1. Suppression of Free Expression

Notwithstanding the finding of the District Court, it is undeniable that

the Defendants simply disagreed with and refused to implement the above

described state and federal statutes. Cf. Opinion, p. 22. They have so

testified, and have acted in accordance with their testimony.

At her deposition in December 2004, Defendant Buchanan testified

bluntly that she did not agree with the policy of 42 USC 604a(c), concerning

non-discrimination:

My position right now today is that it is improper for the State of Michigan to contract with a provider that incorporates religious beliefs, practices, et cetera in their daily treatment and ongoing care for youth.

7 Public Act, section 220(4).


D. Buchanan, 12/10/04, p. 74.

Far from a slip of the tongue or a snippet taken out of context, this is

clearly Ms. Buchanan’s opinion. She testified to this effect at least 6 times

that day.8 On one occasion, she testified to an attitude at polar opposites to

the “inclusive” policy of the Federal Law {42 USC 604a (b)}.

…it would be my belief that the State of Michigan does not want to contract with a provider that engages in this activity…

D. Buchanan, 12/10/04, p.128.

No co-Defendant has disputed or disavowed Ms. Buchanan’s

testimony on the attitude of “the State of Michigan,” nor has any filing of

counsel. Clearly, Defendants are all of one mind that FBOs should not be

permitted to express their religious beliefs in their programs, which places

them all at odds with the express purpose of Congress, which the Michigan

Legislature explicitly adopted on this count. Moreover, Defendants clearly

acted on their attitudes by imposing and maintaining the moratorium which

is at the bottom of this dispute.

Defendants acknowledge in their pleadings that they initiated the

moratorium when they learned, allegedly, that 10 wards were complaining

of involuntary proselytization. Defendants’ Brief Opposing Preliminary

8 See D. Buchanan, 12/10/04, pp. 58-9, 62-5, 71-2, 88-90, 138-9, and 149-51.


Injunction, pp. 1-3. Rather than accord any of the wards the right to

relocate, as prescribed by 42 U.S.C. § 604a (e)(1), Defendants issued a

written ultimatum on January 9, 2004, demanding that Teen Ranch excise

all its religious programming.

[I]f Teen Ranch is unwilling to modify its current practices regarding imposition of its religious beliefs into daily treatment and service plan activities, FIA is unable to…rescind the moratorium.

January 9 2004 letter, (emphasis added).

Therefore, it is uncontestable but that Defendants rejected the

announced federal and state mandates to permit participating FBOs like

Teen Ranch to retain and express their religious beliefs. They likewise

clearly refused to acknowledge the private choice rights of wards.

2. Denial of private choice.

Once Defendants uncovered evidence of “involuntary

proselytization,” they set about having Teen Ranch remove its entire

religious program rather than address any individual complaint. See D.

Buchanan, 12/10/04, pp. 118-123. They did not accord any ward the option

to demand relocation. No complaining youth was advised of their rights of

relocation. No caseworker or GAL/lawyer,9 was dispatched to secure

relocation. No parents were told of the complaints. See Buchanan, 12/10/04, 9 Under state law, each youth is assigned a state paid lawyer to act as Guardian ad Litem. Ms. Buchanan admitted that none of these GALs was advised of the 10 complaining youths.


pp. 100-125. In essence, nothing was done by Defendants to protect the

rights of the 10 “complaining witnesses” to be relocated under 42 U.S.C. §

604a(e)(1), or Section 220(2) of the Public Act.

None of these shortcomings can be attributed to Teen Ranch, since, as

Ms. Buchanan admitted, Teen Ranch was not given the names of the

“complaining witnesses.” See D.Buchanan, 12/10/04, pp. 108-113. As

such, it is indisputable that, faced with the precise objections contemplated

under the two statutes, Defendants denied the unwilling youths their rights

of private choice, and, because they advised no one else of the youths’

identities and apparent dilemmas, made it impossible for anyone else to

vindicate these rights. Defendants merely left the complaining wards at

Teen Ranch until they were released from the program, and blackballed

Teen Ranch.

Worse, Defendants denied access to Teen Ranch to a known,

documented, willing youth, one Jason Loneske, who signed all the forms

evidencing his willingness to attend and participate in the Teen Ranch

program, and who was represented by private counsel, to boot. See Dan

Carter 12/09/04, pp. 17-26. Defendants denied Mr. Loneske’s well

documented placement request in order to maintain their ongoing

“moratorium” against Teen Ranch placements. Therefore, Defendants


intentionally deprived the statutory right of private choice to objecting

youths and to a willing potential placement, thus ignoring Michigan and

Federal law.

Therefore, contrary to the District Court’s finding, it is indisputable

that Defendants violated the Federal Law and Public Act on both essential

fronts. They demanded that Teen Ranch excise religious programming, a

characteristic that Teen Ranch was statutorily entitled to maintain. And they

unquestionably refused youths the rights of private choice.

C. The District Court Correctly Found That Michigan and Federal Law Require Private Choice for Wards Attending FBOs, But Erred When It Then Punished Teen Ranch For FIA’s Failure To Follow Michigan and Federal Law.

The District Court correctly found that Michigan and Federal law

require a ward to have a choice before being sent to a FBO for residential

care. The District Court ruled that providing a youth the ability to opt-out

of a placement to an FBO is not a system of true private choice.10

The District Court then punished Teen Ranch for FIA’s failure to

follow the dictates of Michigan and Federal law. Punishing Plaintiffs for

FIA’s failure to provide a constitutional system of private choice is

misplaced blame. Rather than punishing Plaintiffs, the District Court should

10 As will be explained in the next section, a system where wards can opt out of a placement to an FBO does satisfy any Establishment Clause concerns, and is a valid “private choice” as those terms are understood in Supreme Court precedent. See Mitchell,


have ordered FIA to follow Michigan and Federal law, and ordered that it

rescind its order that Teen Ranch change the way in which it expresses its

religious beliefs if it wants to continue receiving placements.

II. AN OPT-OUT SYSTEM SATISFIES THE ESTABLISHMENT CLAUSE.

The District Court supplied an excellent synopsis of the jurisprudence

of private choice. Opinion, p. 12. It also aptly acknowledged that the

presence or absence of “true private choice” is determinative of whether the

Defendants can prevail in their argument that Teen Ranch must excise its

religious programming. Opinion, p. 13. However, by concluding that the

“limited” choice acknowledged by Defendants is somehow less than “true

private choice,” the District Court erred, and accepted a false distinction

between “opt-out” and “private choice.” See Opinion, pp.13-19. The

essence of “true private choice” is satisfied by the “opt-out” the statutes

grant the wards.

A. The Opt-Out Provision Prevents The Government From Forcing Wards To Attend FBO’s.

FIA contends that Teen Ranch conducts the only program that

incorporates religious content of the 96 private providers with which the

Defendants had contracts. See Opinion, p.2. Hence, it obviously follows

that, if a ward unwilling to participate in religious programming rejects


placement at Teen Ranch, he/she will not experience this programming

anywhere else he/she is sent.

It is likewise clear that the dictates of both statutes include the

disclosure of the religious programming before placement occurs. Both the

Federal Law and the Public Act accord the right to demand relocation to a

recipient of services in regard to an organization from which he/she “…

receives or would receive” services. See 42 U.S.C. § 604a(e)(1) and Public

Act (2). This necessarily requires that recipients of services (wards) must be

permitted to know what occurs at the FBO before they are placed there.

Hence, the statutes grant two levels of choice, the right to reject placement

at an FBO from which the ward “would receive” the funded services, and

the right to demand relocation from an FBO where the ward “receives” said

services. Therefore, at the very least, two “opt-outs” exist.

The pre-placement “opt out” alone qualifies as private choice, even

though, as the District Court noted, Defendants don’t supply wards with a

broad array of alternative placements. This becomes clear when the true

nature of private choice, as displayed by precedent, is understood.

The lynchpin issue, flagged in Mitchell, is whether the ward finds

him/herself at Teen Ranch as a result of his/her own private consent, rather

than the “unmediated will of government.” See Mitchell, 530 U.S. at 810. If


the State cannot compel the unwilling ward to accept placement at Teen

Ranch, (and both statutes forbid exactly this) it cannot be said that a

placement at Teen Ranch derives from the “unmediated will of

government.”11

In Mitchell, the Court noted in passing that, on average, 41 of the 46

private schools deriving aid from the challenged program had religious

affiliations, a ratio that apparently caused the Supreme Court no concern,

since it elicited no further comment from the Court. Here, the District Court

found that Teen Ranch is the only one of 96 private providers that

incorporates the challenged religious content. The inference to be drawn is

clear, i.e. more than enough non-religious options are available in this case

to solidify the “privacy” of the choice to be placed at Teen Ranch.

The DC Circuit has also, more recently, dispatched with the notion

that, in order to constitute “true private choice” that there must be particular

number of options available to the individual. In American Jewish Congress

v Corporation for National and Community Service, 399 F.3d 351 (D.C. Cir.

2005), the Circuit Court responded to an argument that, because roughly

20% of the 1600 schools qualifying for the government funded AmeriCorps

Education Awards Program were of religious affiliation, the true

11It is also clear from the testimony of Ms. Buchanan et al. that at least these government agents will not be force-feeding Teen Ranch to any unsuspecting ward anytime soon.


independence of the private choice(s) was vitiated. Id. at 357-358. That

Court gave the argument short shrift:

The relevant question is whether participants seeking to earn an Educational Award possess a genuine independent choice between religious and non religious organizations in which to perform their national service. Of course the number of such opportunities is, as AJC puts it, ‘limited’. It could hardly be unlimited. The important points are (1) that there are numerous AmeriCorps teaching positions in public and private secular school; and (2) that there is no evidence of any participant who wanted to teach in a secular school, but was impermissibly channeled to a religious school.

In Zelman, 82 percent of the eligible private schools participating in the voucher program were religious schools, and 96 per cent of the students who took advantage of vouchers attended religious schools. … When enough non-religious options exist, those participants who choose to teach in religious schools do so only as a result of their own genuine and private choice.

Id. at 358 (emphasis added).

In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the Supreme

Court confronted an Establishment Clause challenge to Cleveland, Ohio’s

pilot “voucher” program, reversed a panel of this Court, but agreed with

Judge Ryan's dissent. It ruled that the mere fact that 46 of the 56 private

schools that participated in the voucher program were religious did not

vitiate the true private choice of parents who enrolled their children in one of

the 46 schools.


That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all the options Ohio provides Cleveland’s schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.

Id. at 655-656 (emphasis added)

In this case, only 35 of the 96 providers are even nominally religious,

and Teen Ranch is, by consensus, the only program that incorporates

religion into its daily program. Once again, the arithmetic conclusions to be

drawn by the ratio of 1:96 are inescapable. Any ward “opting out” of Teen

Ranch is absolutely guaranteed a non-religious placement, and will continue

to be so guaranteed unless and until there is an unforeseen, massive shift in

the composition of Defendants’ provider base, a prospect no one has

indicated is a reasonable possibility. Therefore, the finding of the District

Court that no “true private choice” exists herein is indefensible, as a matter

of clear Establishment Clause law.

Further, the admittedly volitional practice of the Defendants to offer

only the “best match” to a ward is constitutionally irrelevant. Cf. Opinion,

p. 13 (“The FIA points out that the ward does not get to choose where he is

placed. Both the initial and ultimate placement decision lies with the state.”)

So long as the statutes, as they do, guarantee a religiously disenchanted


ward the right to refuse to go to, or stay at, Teen Ranch, “true private

choice” as described in Mitchell, Zelman, and American Jewish Congress is

present. No one (provided Defendants obey the statutes) can be coerced to

submit to religious programming who is unwilling to do so.

Assuming arguendo that the Defendants’ practice of offering wards

“one choice only” is seen to somehow fall short of the requirements of

private choice, though, the question is begged as to which way this finding

properly cuts. The District Court effectively, and erroneously, attributed the

actions of the Defendants to shortcomings in the statutes. However,

Defendants admit that their “one choice only” approach is not mandated by

either of the above described statutes or, to Defendant Udow’s knowledge,

by any other law applicable to Defendants. See Udow, 11/09/04 pp. 71-75.

Therefore, the Defendants’ practice, which they claim removes “true private

choice,” must be seen as a mere affectation of these Defendants, who have

confessed an open hostility to having providers that incorporate religion

being allowed to participate in this federally funded program at all. See D.

Buchanan, 12/10/04, footnote 3, above. This affectation of Defendants can

not be fairly attributed to the statutes they admittedly disagree with. The

dual purpose of Congress, announced in the Federal Law itself, was to

permit FBO participation without the requirement that they secularize, and


accord individuals their religious freedom as well (via, of course, private

choice). Teen Ranch humbly submits that neither Defendants, nor the

District Court, have identified a single feature of the two statutes that

sanction the Defendants’ denial of private choice rights to the wards they

encounter. To the contrary, both statutes clearly instruct Defendants to take

such actions as are needed to accord the wards the right to reject a religious

placement, which, as Zelman and American Jewish Congress teach, is the

essence of “private choice.” As such, the District Court’s discussion of this

topic at pp. 15-16 of its Opinion is wholly without merit.

By way of example, none of the cases cited above, nor any case cited

by the District Court itself, hold or opine that, in order to constitutes “true

private choice” the individual must “have the ability to choose or reject a

religious program from a menu of secular and religious programs.” See

Opinion, p. 16 (emphasis added). Moreover, nowhere does the District

Court adequately address the compelling question - if the ‘menu’ is too

short, who or what is to blame? In this case, the menu is not too short to

constitute true private choice, but the parties to blame for however short it

may be are clearly not the authors of the statutes in question, but rather the

parties who have admitted a desire to frustrate the statutes’ stated purpose!

B. The Youth Of Wards Is A Red Herring.


1. The District Court Opinion.

Throughout this case, Defendants have made much of the alleged

isolation, youth, and vulnerability of the wards in question. They assert that

these features of the wards render it essentially impossible for them to ever

exercise true private choice.

In contrast to McCallum, there are no “genuinely and independent private choices” of programs being made in this case. The individuals being served by the Teen Ranch program are children In particular, vulnerable and troubled children- those who are abused, neglected and delinquent.

* * *

Furthermore, the very fact that the program participants are children, especially emotionally fragile and damaged children, negates the “free and independent” nature of any choice they would be called upon to make…

Defendants’ Brief opposing Preliminary Injunction, p. 7. (emphasis added).

The District Court clearly affixed great weight to this “youth”

argument.

Regardless of whether the state wards are vulnerable, they are children. The Court believes that this fact cannot be ignored as the Court considers whether an opt-out provision is sufficient to make the ward’s choice “a true private choice”.

Opinion, p. 14.

After two pages of discussion, which will be addressed momentarily,

the District Court concluded as follows:


the Court is satisfied that where, as here, the State selects the juvenile ward’s residential placement, the ward’s ability to opt-out of placement at a faith-based institution with religious programming is not sufficient to avoid Establishment Clause problems because placements at Teen Ranch would advance or endorse a particular religious viewpoint.

Opinion, p.16.

Teen Ranch has no quarrel with the Court’s sensitivity, applauds the

Court for it, and gently reminds those who doubt our sensitivity that Teen

Ranch has dedicated over 35 years to serving these troubled youth.12

However, mere tautologies (“they are children”), and assertions of

mindfulness are simply not a substitute for sound legal analysis. There are

several reasons why the Court has erred.

2. Analysis of the District Court Opinion.

a. The presumed special status of minors.

The District Court’s Opinion clearly assumes, as the Defendants

asserted, that minors occupy some sort of palpably distinct constitutional

footing, which, in this case, deprives them of the ability to exercise private

choice. This is simply not true. Neither the Constitution, nor the statutes in

question, nor the Supreme Court, accept that one’s constitutional rights vary

with one’s age. See Good News v. Milford School District, 533 U.S. 98, 116

12 Indeed, the Defendants’ repeated invocations of concern for the young wards is ironic, in light of the fact, as briefed above, the Defendants themselves are the only individuals known to have actually isolated the very youths they cast as “victims,” by denying the 10 complaining wards the option to leave Teen Ranch, and failing to report their complaints to any responsible adult. D. Buchanan 12/10/04, pp. 100-125.


(2001) (“But we did not suggest that, when the school was not actually

advancing religion, the impressionability of students would be relevant to

the Establishment Clause issue.”); FEC v. McConnell, 124 S.Ct. 619, 711

(2004) (finding that minors have a First Amendment right to make political

contributions and striking down a law prohibiting them from doing so).

Neither of the statutes draw any distinction as to the age of the “individual”

who has the right to demand relocation. Moreover, the Defendants’

argument, and the District Court’s Opinion would have the effect (clearly at

odds with the stated legislative purpose) of carving out an unwritten

exception to the Federal Law and the Public Act, such that young people

have no right to exercise private choice, so they all must accept purely

secular programming. There is certainly no authority for that proposition.

Rather, Supreme Court precedence strongly suggests that the opposite is the

case, i.e. that “private choice” is properly exercised on behalf of school aged

children by the appropriate adult proxies.

The passages from Zelman and Mitchell quoted above are clear and

telling examples. In both cases what was at issue was the propriety of

governmental aid for private, parochial schools which serviced minors of the

same ages as the wards herein. In both cases the Supreme Court approached

the issue of private choice as being exercised by the parents of these


minors, not by the minors themselves. As such, the clear judicial

presumption is that private choice, in the case of minors, can readily be

exercised by the appropriate adult proxy(ies). In neither Zelman nor

Mitchell did the Supreme Court devote so much as a sentence to the idea that

adult proxies might not be qualified to exercise “private choice” rights on

behalf of their child(ren)/wards. Although Teen Ranch certainly made the

point below that these proxies (both parental and paid professional) abound

in this case, the District Court noted the argument, and although Defendants

admitted that these proxies could “certainly” exercise the right to “opt-out”

on behalf of the wards,13 the District Court’s analysis simply ignored their

presence. See Opinion, pp. 14-16. This is clear error, not ameliorated by the

District Court’s discussion of precedent.

b. Misreading of precedent.

(1.) Faith Works

Immediately before announcing his decision on the issue, the District

Court observed that Judge Crabb, the US District Judge for the Western

District of Wisconsin who decided the Faith Works case,14 was also mindful

that the youth of those exercising private choice complicated the issue. See

Opinion, p.16. The District Court drew certain comparisons to the district

13 See Buchanan, 12/10/04, pp. 155-57.14 See Freedom from Religion Foundation, Inc. v. McCallum, 179 F.Supp. 2d 950 (W.D. Wis. 2002), on reconsideration in part, 214 F. Supp. 2d 905 (W.D. Wis. 2002), aff’d, 324 F.3d 880 (7th Cir. 2003).


court opinion in Faith Works. A thoughtful comparison of the facts and

rulings in the Faith Works decisions to the facts in this case, though, reveal

at least five striking features that all serve to undercut the District Court’s

conclusions.

First, the “coerciveness” issue was present in both cases. Here, we

know that a computer “grid” process more or less objectively “matches”

incoming wards to the known capacities of the 96 facilities. See Opinion, pp.

2-3. In Faith Works, the referral to the religious program was done by the

probationers’ parole officer, not by using some objective criteria, but by

his/her own personal subjective judgment. See id. at 962. The Faith Works

probationer risks a return to jail if he offends his parole officer with his lack

of enthusiasm for the religious program, whereas the wards herein face

nothing more daunting than being sent to one of 95 other facilities, all of

which are secular in their content, and none of which is a jail. The relative

coerciveness of the two situations is easy to judge.

Second, the Faith Works probationers were also not provided a

“menu of choices” from which to pick at leisure, like the wards herein. This

did not dissuade the Wisconsin district court. See id. at 956-962. It should

not dissuade this Court.

Third, the unbridled enthusiasm of the Wisconsin Department of


Corrections for the faith-based alternative in Faith Works was clear, open,

and noted by the district court in its opinion, but overcome by its eventual

ruling that the probationers’ right to reject the placement recommendation

was sufficient to constitute private choice. See id. In this case, the attitude

of Defendants toward the religious programming at Teen Ranch can be

described a few ways, none of which would be “unbridled enthusiasm.” No

evidence in this case remotely hints that the Defendants are apt, out of an

abundance of Christian piety, to “impermissibly channel” youths to Teen

Ranch. Moreover, it is admitted that the computer “grid” places NO weight

on the religious preference(s) of the wards, again eliminating the possibility

that there might be “coercion” encoded in the program. See Slotke Dep.

Fourth, as in this case, the Wisconsin district court noted that the Faith

Works probationer “… does not receive a brochure listing his options,

but instead receives a program recommendation from his agent, along with

the information that he can refuse the recommended placement if he objects

to its religious content and participate in a secular program instead.” See id.

Of course, these features did not deter the Faith Works courts either. Here,

as briefed above, the dictates of the federal and state statutes clearly imply

that the above-noted written disclosure materials should be provided to

wards and their adult proxies here.


Finally, although it is true that Judge Crabb found the decision a

“close” call, the Seventh Circuit had no such misgivings. Concerning the

issue of the “enthusiasm” of the parole agents, the Seventh Circuit spoke

bluntly and directly. “The choice must be private, to provide insulating

material between government and religion. It is private; it is the offender’s

choice.” See Freedom from Religion, 324 F.3d at 881 (emphasis in original).

As far as the “steering” effect of the direct, personal recommendations, the

Circuit Court was also none too reticent to rebuff the complaint. “The

implications of the argument are unacceptable...Suggestion is not a synonym

for coercion.” Id. at 883.

Likewise, the Seventh Circuit summarily dismissed the objection that

the criteria for recommending Faith Works were insufficiently objective.

See id. The Seventh Circuit concluded in seven pages, having not once

intimated that this was a “close” decision, nor expressing any concern over

the absence of a “menu.” It issued a unanimous decision.

Hence, with due deference to the one distinction noted by the District

Court in this case, i.e. age, the following statement of the Court on page 16

of its Opinion is patently inaccurate.

The Court is aware of no case that has examined the issue of whether an opt-out provision is sufficient to constitute “true private choice.”


The Western District of Wisconsin declared the opt-out provision in

Faith Works to be true private choice, and the Seventh Circuit affirmed it.

Neither do the Faith Works decisions support this Court’s pre-

occupation with the age of the wards herein. The reference made by Judge

Crabb to the distinction between youths and adults was made in passing, and

with reference to a specific precedent, i.e. School District of Abington Twp. v

Schempp, 374 US 203 (1963). The factual context of Schempp makes it

clear that the issues concerning the Supreme Court therein find no analogy

in this case.

(2) Schempp.

Schempp involved semi-mandatory school prayer in the Abington

school district, which was defended on the basis that (1) it was just a little

religion and (2) the school children could leave the room or otherwise refuse

to participate. See id. The Supreme Court accepted neither defense.

However, the distinction between the rights of non-participation in Schempp

and the private choice rights herein are striking.

Schempp involved schoolchildren who, even were they to leave the

room or refuse to pray, would still be subject to explaining themselves to

classmates and teachers with whom they still had to interact all day,

every day. Their “opt out” wouldn’t relieve them of those potentially


coercive and unpleasant confrontations. The fear of same may well be

understood to have the capacity to dissuade the children from exercising

their rights of non-participation. This type of coercion does not exist in the

present case. The ward who rejects Teen Ranch has no peers or teachers to

satisfy and dread. He/she simply winds up elsewhere, in a setting where his

unwillingness to pray, etc. is the norm, not a noteworthy exception. The

attributes that could understandably dissuade the student from exercising

choice in Schempp are completely absent in this case. As such, the concerns

appropriate to school prayer cases are absent in the context of this case, and

the distinction suggested by Judge Crabb in Faith Works, understood in

context, does nothing to undercut the conclusion that the wards herein have

fully free, consequence free, private choice.15

In addition, any ward who is at an FBO, such as Teen Ranch, is there

because he voluntarily chose to be placed at the FBO with full awareness of

its religiosity. A youth who voluntarily chose to be placed at an FBO, who

then later changes his mind, is a wholly different situation than a student at

public school who is being forced to excuse himself from a religious

exercise.

15 This is particularly true of the ward who is accorded the pre-placement right to reject Teen Ranch. In that case, the ward never even meets the presumptive agents of coercion. Further, it is admitted that there is no evidence that suggests Teen Ranch would act to prevent a demand for relocation, either. See Buchanan, 12/10/04, pp.154-157.


(3) American Jewish Congress.

The final precedent cited by the District Court was the DC Circuit

decision in American Jewish Congress, 399 F.3d 351 (D.C. Cir. 2005). We

have briefed above that American Jewish Congress clearly supports the

argument that true private choice exists in this case. Moreover, it did not

speak at all to the “youth” issue. The District Court’s reliance on this

precedent was clearly misplaced.

Therefore, although the District Court apparently accorded the

minority of the subject wards conclusive significance, the District Court’s

emphasis on this factor is nowhere supported in relevant Supreme Court

precedent, and the lessons to be drawn from the Wisconsin district court and

Seventh Circuit in the Faith Works case clearly undercut the District Court’s

conclusions. Finally, the District Court’s indirect reference to school prayer

cases, like Schempp, is likewise misplaced. The youth of the wards in this

case has, ultimately, no true significance to the issue of whether the right of

private choice is accorded. The presence of numerous adult proxies is

“certainly” sufficient.

III. FIA VIOLATED PLAINTIFFS’ CONSTITUTIONAL RIGHTS

A. The Maintenance Of The Moratorium Violates The Free Exercise Clause.

The maintenance of the moratorium violates Teen Ranch’s free


exercise rights because it conditions the receipt of a governmental benefit on

Teen Ranch’s surrender of its religious beliefs and practices and because it

burdens the free exercise of Plaintiff’s religious beliefs without satisfying

the strict scrutiny standard. The Free Exercise Clause provides that

“Congress shall make no law respecting the establishment of religion, or

prohibiting the free exercise thereof….” U.S. Const., Amend. 1.

The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. . . . The government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority.

Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S.

872, 877 (1990) (internal quotation marks and citations omitted, emphasis

added); see also Hobbie v. Unemployment Appeals Comm'n of Fla., 480

U.S. 136 (1987) (requiring students to choose between their religious beliefs

and receiving a government benefit); Thomas v. Review Bd. of Indiana

Employment Security Div., 450 U.S. 707 (1981); Sherbert v. Verner, 374

U.S. 398 (1963).

It is indisputable that Teen Ranch has a religious belief to share its

faith with wards who want to hear it and that Teen Ranch cares for children

because of its religious beliefs, and those of its staff. (Compl. ¶¶ 12, 14.e)


It is indisputable that the only reason that the moratorium remains in place is

because Teen Ranch will not change its religious expression. (Compl. Ex.

G at 1; see also Compl. Ex. B.) As briefed above, it is undisputable that the

Federal Law and the Public Act both accord Teen Ranch the right to this

free expression. FIA thus conditions the receipt of government benefits on

the surrendering of Teen Ranch’s religious beliefs, thus violating Teen

Ranch’s free exercise rights.

To condition the availability of benefits upon a person’s “willingness

to violate a cardinal principle of [his] religious faith [by surrendering his

religiously impelled ministry] effectively penalizes the free exercise of [his]

constitutional liberties.” McDaniel v. Paty, 435 U.S. 618, 626 (1978)

(alterations in original) (quoting Sherbert, 374 U.S. at 406). As the Court in

Sherbert explained, “the imposition of such a condition upon even a

gratuitous benefit inevitably deter[s] or discourage[s] the exercise of First

Amendment rights of expression and thereby threaten[s] to produce a result

which the State could not command directly.” Sherbert, 374 U.S. at 405

(citations and quotation marks omitted) (emphasis added).

Here, FIA unlawfully discriminates expressly on the basis of religion

and conditions FIA placements on Teen Ranch surrendering its religious

character: “if Teen Ranch is unwilling to modify its current practices


regarding the imposition of its religious beliefs into daily treatment and

service plan activities, FIA is unable to approve the corrective action plan

and rescind the moratorium.” (Compl. Ex. B at 3 (emphasis added).)

In addition, the FIA’s policy that prohibits organizations from

expressing their religious beliefs with wards, even on a voluntary basis,

violates the Free Exercise Clause as it places a substantial burden on the free

exercise of Teen Ranch’s religious beliefs. Under Smith, a law which

burdens religious exercise that is not both neutral and generally applicable

will undergo rigorous strict scrutiny. Indeed, “the minimum requirement of

neutrality is that the law not discriminate on its face.” Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993). FIA’s policy

requiring Teen Ranch to cease expressing its religious beliefs to willing

wards is not neutral, nor generally applicable. FIA’s policy is not neutral as

it targets religious expressions, and not secular expressions. The only

viewpoint targeted by the FIA is a religious viewpoint, thus the policy is not

neutral, nor generally applicable. See Lukumi, 508 U.S. at 531. It would

survive only if FIA was advancing a compelling state interest in the least

restrictive means.16

16 FIAs actions cannot pass Constitutional muster on either of the familiar terms, “rational relation” or “strict scrutiny.” Both tests require that the state action under review advance some acceptable governmental interest. In this case, as shown above, FIA acts in violation of explicit state and federal statutory directives and the adopted public policy of the State to both permit religious expression by the FBO and accord


The FIA’s policy and actions fail both tests. The State of Michigan

clearly has no compelling interest in requiring Teen Ranch to cease the

expression of its religious beliefs to wards. To the contrary, the State

incorporated the Federal Law intended to permit this expression.

Assuming, though, that a state interest could be found in preventing

unwelcome proselytization from being visited on state wards, then the

actions of Defendants still fail. As briefed above, by refusing the offended

wards the right, or even knowledge of their option, to relocate, Defendants

have left the supposed victims unaided, and deprived willing participants,

epitomized by Jason Loneske, of the availability of their desired religious

programming. Hence, rather than pursue their “state” interest in the least

restrictive way, the Defendants have opted for the most ham-handed

alternative possible!

The District Court’s proposed distinction, i.e. that a state contract is

not a public benefit (Opinion, page 20), fails to take into account that the

Federal Law and Public Act both prohibit denying these contracts to FBOs,

thus making the analogy to public benefits an apt one.

Moreover, the Court’s reliance on Locke v. Davey, 540 U.S. 712

(2003) is completely misplaced. In a nutshell, the bureaucrat in Locke was

wards private choice. It is impossible on its face to violate public policy and yet claim to advance it.


upheld for obeying a state statute that denied state scholarships (clearly a

“benefit” the state was not obliged to bestow on anyone) to a narrow band of

potential scholars, i.e. those studying for the ministry. Here, these

bureaucrats have been sued for ignoring their statutory duties to include

FBOs (not seminaries) in their federally funded activities. To draw

particular note of the last line of Locke quoted by the District Court on page

20 of its opinion, in this case “The State” has clearly chosen to fund a

distinct category of instruction, i.e. faith based youth services. It is a set of

bureaucrats who have simply defied their statutory directives.

B. The Moratorium Violates The Free Speech Clause.

Again, by misplacing its reliance on Locke, the District Court erred in

denying this claim of Teen Ranch. The District Court failed to recognize

that, via 42 U.S.C. § 604a (b) (c) and (d) (1), Congress has indeed opened a

“public forum,” and the moratorium is a violation of Teen Ranch’s freedom

of speech.

“The government must abstain from regulating speech when the

specific motivating ideology or the opinion or perspective of the speaker is

the rationale for the restriction.” Rosenberger v. Rector and Visitors of the

University of Virginia, 515 U.S. 819, 829 (1995). As the Rosenberger Court

put it, religion is “a specific premise, a perspective, a standpoint from which


a variety of subjects may be discussed and considered.” Id. at 831. Teen

Ranch treats placed youth “from a Christian perspective” (Compl. ¶ 12) and

its teaching and spiritual care reflect orthodox Christian views. (Compl. ¶

14.e; Ex. A at 8, ¶ H; Koch PI Aff. Ex. C.)

FIA has made it clear that the moratorium will be lifted only when

Teen Ranch staff self-censor their speech to satisfy FIA’s sense of secular

orthodoxy: “if Teen Ranch is unwilling to modify its current practices

regarding the imposition of its religious beliefs into daily treatment …, FIA

is unable to … rescind the moratorium.” (Compl. Ex. B at 3 (emphasis

added).) FIA’s attempt to eradicate Teen Ranch’s religious viewpoint from

its treatment services is blatant viewpoint discrimination that violates the

most basic principles of the First Amendment and must be restrained,

enjoined, and penalized.

Both the Federal Law (42 U.S.C. §604a) and the Public Act explicitly

give FBOs, such as Teen Ranch, the right to express their religious beliefs,

thus creating a free speech right. See 42 USC 604a (d), briefed above.

Thus, Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001) is

directly on point, notwithstanding the District Court’s Opinion. See 531 U.S.

533 (2001). In Velazquez, the Supreme Court struck down a law that

prohibited recipients of government funds from arguing in court that existing


welfare laws were unconstitutional. The Court said, “Although the LSC

program differs from the program at issue in Rosenberger in that its purpose

is not to ‘encourage a diversity of views,’ the salient point is that, like the

program in Rosenberger, the LSC program was designed to facilitate private

speech, not to promote a governmental message.” Id.

Like in Velazquez, the Federal Law was designed to facilitate private

speech, and not to promote a governmental message. It was expressly

intended to facilitate private religious speech, and allows FBOs to

participate in a government subsidy program, while retaining the right to

engage in private religious speech. The Federal law prohibits the censoring

of private religious expression. Because the FIA is attempting to censor

Teen Ranch’s private religious speech, it violates their Free Speech rights

under Velazquez.

The seminal aspect of the District Court’s reasoning on this point

demonstrates, again, that the District Court fails to recognize that the

Defendants were not de facto legislators, at their leisure to form public

policy as they saw fit. They had express statutory instructions to comply

with, both federal and state, which compelled them to open this forum to

FBOs like Teen Ranch.

The fact that FIA has decided to contract out some of its children’s services responsibilities to private providers does not


create a forum for private speech. The purpose of contracting for these services is to provide treatment for troubled youth, not to promote the private speech of the providers of that care.

Opinion, p. 24.

With due respect, this assertion of the District Court simply ignores,

and cannot be reconciled with the clear language of 42 USC 604a (b).

The purpose of this section is to allow States to contract with religious organizations…without impairing the religious character of such organizations.

***

A religious organization with a contract described in …this section, …shall retain its independence from Federal, State and local governments, including such organization’s control over the definition, development practice and expression of its religious beliefs.

42 U.S.C. § 604a(b) &(d)(1) (emphasis added).

The balance of the District Court’s analysis of this claim depends on

there being no true “private choice” in the State’s program, which, we have

addressed above. See Opinion, p. 24. The District Court erred.

C. The Moratorium Violates The Federal Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.

The Fourteenth Amendment guarantees that “[n]o state shall . . . deny

to any person within its jurisdiction the equal protection of the laws.” U.S.

Const., Amend. XIV § 1. The Equal Protection Clause requires that the


government treat equally all persons who are similarly situated. City of

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1977). When

the challenged government act “impinge[s] on personal rights protected by

the Constitution,” the government action is presumptively invalid and may

survive only if the action advances a compelling state interest by narrowly

tailored means. Id. at 440; see also Perry Educ. Ass’n v. Perry Local

Educator’s Ass’n, 460 U.S. 37, 45 (1983).

Teen Ranch is similarly situated to the other private placement

facilities that contract with the state and offer similar services—some of

which are secular, and others which are faith-based providers. This is the

express guarantee of the Federal law, at 42 USCA 604a (b) and (c). Teen

Ranch has received disparate treatment for only one reason: Teen Ranch

provides care from a Christian perspective. Religious speech, worship, and

discussion of religious topics, however, are all core First Amendment

speech, and First Amendment expression is a fundamental right. Widmar v.

Vincent, 454 U.S. 263, 269 n.6 (1981). Because the FIA’s discriminatory

policy infringes these First Amendment rights, strict scrutiny is mandated

under Cleburne and Perry Education Association. As was explained in

Section V above, the FIA’s policy and actions fail strict scrutiny as they


neither serve a compelling interest (in fact, they frustrate the express purpose

of Congress), nor are they narrowly tailored to achieve any valid interest.

The District Court’s Opinion accurately notes that Teen Ranch is the

only one of the 96 private providers that “incorporates its religious beliefs

and teachings into the services funded….” Opinion, p. 26. The Court,

however, absolutely errs in concluding that this fact means that Teen Ranch

“…is not similarly situated to the other private placement facilities….” Id.

Again, the Federal Law explicitly demands that Teen Ranch be treated as

though it were similarly situated to those providers that do not “incorporate”

their religious beliefs. See 42 U.S.C. § 604 a(c ) (“… religious organizations

are eligible, on the same basis as any other private organization…”).

The District Court then maintains that, even if Teen Ranch is similarly

situated, strict scrutiny is only applicable if a fundamental right is involved,

otherwise the appropriate test of Defendants’ actions is the more forgiving

“rational relation” standard. See Opinion, p. 26. Hence, the Court’s ruling

clearly relies on its erroneous rulings that neither Teen Ranch’s Free Speech

nor Free Exercise rights have been infringed, which they clearly have been.

See Opinion, p. 27. It then finds “support” in a case involving a Maine

statute denying certain funding to private schools, i.e. Eullitt v Maine 386

F3d 344 (1st Cir. 2004). Unfortunately, as with the case of Locke v Daley, the


Court completely misses the distinction that, in Eulitt, the state statute

directed that the sectarian schools be disqualified from receiving funding,

the polar opposite of the dictates of the state and federal statutes herein. As

such, the Court’s endorsement of “the State Defendants’ desire to avoid

violating the Establishment Clause…” (See Opinion, p. 27) is entirely

misplaced, not only because the Defendants’ chosen methods are not

necessary, as illustrated by Supreme Court precedent, but also because they

are acting in derogation of state and federal law, both of which compel

them to treat Teen Ranch “…on the same basis as any other private

organization.” See 42 U.S.C. 604a (c). As such, the strict scrutiny test

should have been applied, and Defendants should have been found to have

failed same.

The vagueness doctrine does apply to the “arbitrary and

discriminatory enforcement” of state laws. Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc. 455 U.S. 489, 498 (1982). The record

confirms that the moratorium is precisely that: arbitrary and discriminatory

“enforcement”. There are no standards to guide FIA in imposing a

moratorium, and thus the Defendants’ actions are unconstitutionally vague.


D. The Establishment Clause Does Not Justify The FIA’s Blatant Religious Discrimination, But Rather, The FIA’s Policy And Actions Targeting Religious Expression Violate The Establishment Clause.

Defendant’s sole defense for the fashion in which they have treated

Teen Ranch is their alleged observance of the “separation of church and

state” that is allegedly required by the Establishment Clause. On a broad

level, that argument is a non-starter, and had been so, as a matter of clear

Supreme Court precedent, for at least 3 ½ years before the Defendants

imposed their moratorium.

Given that a contrary rule would lead to . . . absurd results, we have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit.

Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 9 (1993) (relying on

Mueller v. Allen, 463 U.S. 388 (1983) and Witters v. Wash. Dep’t of Serv.

for Blind, 474 U.S. 481 (1986) (emphasis added)).

FIA’s Establishment Clause “defense” fails as there is no direct

funding of Teen Ranch by the state. See Freedom From Religion

Foundation v. McCallum, 324 F.3d 880 (7th Cir. 2003) )(upholding funding

to religious organization that incorporated Christianity into its treatment

program where money did not go directly for religious programming, but


rather reimbursed the organization for costs to treat offenders). The only

monies that Teen Ranch receives from the state are tied directly to wards,

who are statutorily guaranteed the right to reject placement at Teen Ranch

and demand a secular alternative placement. In such events, Teen Ranch

would not receive payment for the ward. This is a paradigmatically private

choice/indirect funding situation, in which Defendants’ stated view of the

dictates of “the separation of church and state” are both erroneous and

clearly outdated.

If, arguendo, we assume that FIA’s Establishment Clause interest was

valid, however, FIA still must achieve that interest by the least restrictive

means. Here, that is simple: FIA should comply with their statutory duty

under the Federal Law and Public Act, and accord unwilling wards the right

to reject placement at Teen Ranch, leaving Teen Ranch with only willing

wards on campus. In essence, FIA has ignored its statutory duty and

penalized Teen Ranch for it. Certainly the least restrictive means of

advancing its claimed interest is for FIA to simply fulfill its statutory duty.

In Everson v. Board of Education, 330 US 1 (1947), wherein the

Supreme Court first used the metaphor of the “Wall of Separation,” it also

stated that the “state power may no more act to handicap religion than it can

to favor them.” Id. at 18. Hence, from the very outset of modern


jurisprudence on the Establishment Clause, the Supreme Court has

instructed that the Clause demands neutrality, and is equally offended by

acts subsidizing religion and acts hostile to it. In this case, the hostility of

Defendants was manifest, from the pre-QAR exchange of e mails poking fun

at Teen Ranch’s religiosity, to their inexplicable misconstruction of what

“direct funding” is (a definition rendered not only erroneous but nearly

irrelevant by the Supreme Court in Mitchell), to their ham-handed refusal to

accord the allegedly offended wards their right to simply relocate (as

mandated by both federal and state law), to their plead concern that Teen

Ranch’s program is pervasively sectarian (an issue described by the

Supreme Court in Mitchell as a “…doctrine, born of bigotry, (that) should be

buried now.”), to their blunt testimony that, if given their choice, FBOs like

Teen Ranch would not be eligible for state contracts. See Buchanan

Deposition. As such, not only does the last 25 years of Supreme Court

jurisprudence on “private choice” establish that Defendants have not

properly served the Establishment Clause, their own actions and testimony

have betrayed the hostility with which they have violated it.

CONCLUSION

Federal Law and the Public Act require FIA to provide a system of

private choice to youth who are placed at faith-based residential care


providers. Both Federal Law and the Public Act prohibit FIA from

discriminating against faith-based providers because of their religious

character, including the manner in which they express and practice their

beliefs. Consequently, FIA acted in direct contravention of Federal Law and

the Public Act when it placed, and maintained, a moratorium on placements

of wards at Teen Ranch until it ceased its religious activities. Thus, FIA

violated Teen Ranch’s constitutional rights. This Court should reverse the

District Court, grant Plaintiffs’ Motion for Summary Judgment, and remand

this case for further proceedings.

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C), I certify the foregoing Appellants’ Brief

is proportionally spaced, has a typeface of 14 points or more, and contains

11,915 words, as calculated by Microsoft Word, exclusive of the Corporate

Disclosure Statement, Table of Contents, Table of Authorities, Request for

Oral Argument, and Certificate of Compliance.

Dated: March 13, 2006 Joel L. Oster


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